Carpenter v. Mineta, 04-71221.

• Decision Date: 29 December 2005
• Docket Number: No. 04-71221.,04-71221.
• Citation: 432 F.3d 1029
• Parties: Robert E. CARPENTER, Petitioner, v. Norman Y. MINETA, Secretary of Transportation; Joseph H. Boardman,<SMALL><SUP>*</SUP></SMALL> Federal Railroad Administrator; Federal Railroad Administration; Department of Transportation, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

432 F.3d 1029

Robert E. CARPENTER, Petitioner, v. Norman Y. MINETA, Secretary of Transportation; Joseph H. Boardman,^* Federal Railroad Administrator; Federal Railroad Administration; Department of Transportation, Respondents.

No. 04-71221.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 15, 2005.

Filed December 29, 2005.

Lawrence M. Mann, Bethesda, MD, for the petitioner.

Colleen A. Brennan, Department of Transportation, Washington, DC, for the respondents.

On Petition for Review of an Order of the Federal Railroad Administration. FRA No. EQAL97-48.

Before FARRIS, TASHIMA, and CALLAHAN, Circuit Judges.

FARRIS, Circuit Judge.

Petitioner challenges the Federal Railroad Administration's decision that he was properly denied certification as a locomotive engineer by his employer-railroad. The FRA Administrator upheld a prior administrative decision that concluded that there was no authority under the administrative dispute resolution regulations to order Petitioner retrained and retested or certified as an engineer. Petitioner disputes this conclusion and also claims that the FRA erred by failing to reach several of his allegations. Last, Petitioner asserts due process violations resulting from the denial of certification and the length of the administrative review. We deny the petition for review.

I

In 1991 the Federal Railroad Administration, an agency of the Department of Transportation, issued a final rule regarding the training and certification of locomotive engineers pursuant to the Federal Railroad Safety Act of 1970, Pub.L. No. 91-458, 84 Stat. 971 (1970) (FRSA) (codified at 49 U.S.C. § 20101 et seq.). This rule, as subsequently amended, is codified in 49 C.F.R. Part 240. With the purpose of ensuring railway safety, these regulations require individual railroads to adopt training and certification programs that meet the minimum requirements of Part 240. 49 C.F.R. §§ 240.1, 240.101. With respect to new engineer candidates, the regulations require a course of training as well as success on both knowledge and skills tests before a railroad may issue a certification. See 49 C.F.R. §§ 240.123, 240.125, 240.127, 240.203. The FRA does not actively participate in engineer testing or certification, but administers the regulation through approval and monitoring of individual railroads' programs, including their training and testing regimens. See 49 C.F.R. § 240.103; see also 49 U.S.C. § 20135(b).

Petitioner Robert E. Carpenter is a conductor for the Burlington Northern and Santa Fe Railway Company. In 1991 he entered Burlington Northern and Santa Fe's FRA approved locomotive engineer training and certification program. To become certified as a locomotive engineer, the railroad requires a minimum average score of 90% on two simulator-based skills tests. In September 1993 Petitioner was administered these skills tests but achieved an aggregate score of 89.76%. A month later Petitioner failed another skills test with a score of 69.34%.¹ As a result of these unsuccessful examinations the railroad denied Petitioner certification as a locomotive engineer.

The FRSA and the FRA's implementing regulations were enacted to improve railway safety, in part by ensuring that locomotives are only operated by qualified and safe engineers. The regulations were not designed to affect the relationships between railway companies and their labor force. See, e.g., 49 U.S.C. § 20110; 49 C.F.R. §§ 240.1(a), 240.5(c)-(f). Despite this focus, Subpart E of 49 C.F.R. Part 240 establishes a limited three-level dispute resolution mechanism in which a person denied engineer certification may obtain a fresh determination by the FRA of whether a railroad's decision was correct. See 49 C.F.R. §§ 240.401-240.411. The FRA has delegated responsibility for hearing initial petitions to the Locomotive Engineer Review Board (LERB). 49 C.F.R. § 240.401. A petitioner dissatisfied with an LERB decision has the right to a re-hearing before a "presiding officer" where discovery, testimony, and argument are permitted. 49 C.F.R. §§ 240.407, 240.409. The task of the presiding officer is not to review the LERB decision, but to determine de novo whether a candidate is qualified and whether a railroad's denial of certification was correct. See 49 C.F.R. § 240.409(c), (q). An adverse decision of a presiding officer may be appealed to the FRA Administrator. 49 C.F.R. § 240.411.

Carpenter petitioned for review of his employer-railroad's decision to deny him engineer certification. In September 1996 the LERB, without deciding whether the denial was correct, ordered Burlington Northern and Santa Fe to comply with 49 C.F.R. § 240.219, which required it to inform Carpenter of the basis of his failing scores and provide him an opportunity to respond. In January 1997, after several letters to Carpenter, Burlington Northern and Santa Fe again denied him certification. Carpenter then filed a second petition with the LERB in July 1997. The LERB decided that the railroad had now satisfied the notification requirement and that the denial of certification was correct.

Carpenter petitioned for re-hearing and in January 1998 the case was opened before a presiding officer. Carpenter claimed that Burlington Northern and Santa Fe's training program and instructors were inadequate, alleged that he was tested on a flawed simulator, sought a declaration that he passed the skills test, and requested that the presiding officer order retraining and retesting or certification. At this point, a long litigation process ensued.² Ultimately, in October 2003, the presiding officer dismissed the petition, concluding that he had no authority under the Part 240 regulations to order the remedial relief requested or to consider the adequacy of Burlington Northern and Sante Fe's certification program. Carpenter appealed this decision to the FRA Administrator who, in February 2004, affirmed the presiding officer.

II

The FRA Administrator's decision to affirm the presiding officer constituted final agency action. See 49 C.F.R. § 240.411(e). We have jurisdiction to review this decision pursuant to 28 U.S.C. § 2342(7) and 49 U.S.C. § 20114(c).

We will reverse an agency decision that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); see also CHW W. Bay v. Thompson, 246 F.3d 1218, 1223 (9th Cir.2001). Despite necessitating a searching review of the record, "the ultimate standard of review is a narrow one." Morongo Band of Mission Indians v. FAA, 161 F.3d 569, 573 (9th Cir.1998). In reaching a decision, however, we must give substantial deference to an agency's reasonable interpretation of its own regulations. Providence Health System-Wash. v. Thompson, 353 F.3d 661, 665 (9th Cir.2003) ("[T]he agency's interpretation must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation."). We review Petitioner's due process claims de novo. See 5 U.S.C. § 706(2)(B); Gonzalez-Julio v. INS, 34 F.3d 820, 823 (9th Cir.1994).

III

Petitioner first asserts that the presiding officer and FRA Administrator are vested with power by the FRSA and the Part 240 dispute resolution regulations to order his employer-railroad to retrain and retest him, or simply to certify him as a locomotive engineer. The FRA insists that its remedial powers are narrow and do not embrace the relief that Carpenter requests, whatever the merits of his petition. Consequently, it argues, the presiding officer and FRA Administrator did not err in dismissing Carpenter's appeal on this ground. The language and purpose of the regulations and statutory scheme demonstrate the reasonableness of the presiding officer and FRA Administrator's interpretation. We agree that the FRA's remedial powers in the dispute resolution scheme do not permit the relief sought.

Under the dispute resolution regulations "[a]ny person who has been denied certification . . . and believes that a railroad incorrectly determined that he or she failed to meet the qualification requirements of this regulation when making the decision to deny . . . certification, may petition the Federal Railroad Administrator to review the railroad's decision." 49 C.F.R. § 240.401(a). Upon de novo re-hearing before a presiding officer, the petitioning party bears the burden of proving "that the railroad's decision to deny certification . . . was incorrect." 49 C.F.R. § 240.409(c), (q) (emphasis added). At the close of this proceeding the presiding officer is required to prepare a written decision containing "the findings of fact and conclusions of law, as well as the basis for each concerning all material issues of fact or law presented on the record." 49 C.F.R. § 240.409(t)-(u).

The plain language of the dispute resolution regulations makes clear that the presiding officer must decide anew whether a railroad correctly determined that a petitioner failed to meet the qualifications for certification as a locomotive engineer. The regulations are silent, however, as to any powers possessed by the presiding officer to remedy an incorrect railroad determination. Petitioner interprets this silence as a lack of restriction on the otherwise plenary power of the presiding officer to issue remedial orders curing incorrect railroad decisions, including the power to order retraining and retesting, and even the power to order certification as a locomotive engineer. In support of this position, Petitioner cites the FRA's broad enforcement powers under 49 U.S.C. § 20111 and 49 C.F.R. § 240.11 to assess civil penalties, issue compliance and emergency orders, and impose injunctions.

He also points to the LERB's first decision in this case, which ordered the railroad to comply with 49 C.F.R. § 240.219, a procedural requirement that railroads inform an unsuccessful applicant of the reasons for denying certification and provide an opportunity to respond prior to denial, as...